James D. Matheson et al., Appellants, vs. Samuel B. Thompson, Appellee, 20 Fla. 790

The Chibe-Justice delivered the opinion of the court. The first grouud upon which a reversal of the decree is prayed is that the mortgagees, Ingram and Adamson, are not parties to this suit. This question is mooted now for the first time by the petition of appeal. Ho such question was made in the court below and this practice of suggesting new questions after an appeal is not entitled to much favor, especially, as in the present case, where no decree is prayed affecting persons whó are not parties, and all the interests of present parties can be fully determined without the presence of others.

According to the pleadings of these parties the mortgagees had assigned their entire interest in the mortgage to one of the defendants. The mortgagees, therefore, had no interest in the mortgage or in its proceeds. If the mortgage was inoperative for any cause as against complainant by reason of any fraud or because it had been paid before it was assigned to Mrs.

ITaile, and this complainant had been made a defendant in the foreclosure proceedings of Matheson and wife and Haile and wife against the mortgagor, surely it cannot be denied that the present complainant could have interposed a defence to the foreclosure upon the grounds alleged in the present bill, though the mortgagees were not parties to the foreclosure suit. This complainant seeks relief against the proceedings and conduct of the defendants, and not against the assignors of the mortgage, and the decree complained of by these appellants in no manner affects the mortgagees.

We fail to comprehend in what respect or to what end they should have been made parties here. The second ground of alleged error in the decree is that a long time had elapsed after the right to proceed had accrued, before this suit was commenced. The sheriffs deed on the foreclosure against the mortgagor to Mrs. Haile bears date November 2, 1875, and was recorded December 21,1877. On the 22d December, 1877, Mrs. Haile conveyed by deed to Ramsey. This suit was commenced March 4,1878, about two and half months after the sheriff’s deed and the deed to Ramsey came to light.

There is not to our knowledge any law of this State requiring the owner of real estate to commence suit against a party claiming title adversely, earlier than within two and a half months after his right of action accrues. The remaining grounds of error are embraced in this: That the complainant was not entitled to the relief sought, but at most had only a right to redeem under the mortgage. This involves a consideration of the facts presented by the pleadings and the evidence adduced by the parties.

The complainant’s legal title by deed from Alexander Matheson in 1858 is admitted, but it is averred that this title is subordinate to the lien of the mortgage'executed in 1857 by Alexander Matheson. Defendants claim that they derived title under the foreclosure of this mortgage ; that at a sale thereunder Mrs. Haile was the purchaser, taking a deed from the sheriff, and afterwards conveyed to Ramsey, one of the defendants; that the mortgage foreclosed had been assigned by Ingram and Adamson to Mrs. Augusta S. Matheson, one of the defendants, who assigned an interest in it to Mrs. Haile, and Mrs.

Matheson and Mrs. Haile, their husbands joining, foreclosed against Alexander Matheson, the mortgagor, and obtained the decree. The record of this foreclosure proceeding was put in evidence and consisted of a bill filed 29th April, 1875, on which is endorsed an admission of service signed by Mathe son; a subpoena with a like admisson of service; a certified copy of the mortgage; and a final decree signed by the Judge September 20, 1875. No other papers appear in the case.

The note mentioned in the mortgage is not there, and the testimony shows that it was not produced, nor a copy of it, and its absence was not accounted for. Neither was the original mortgage or the assignment of the mortgage produced or accounted for. Upon the trial of the present case the complainant demanded the production of the assignment of the mortgage, and defendants’ counsel declined to produce it. Its contents are not disclosed. The bill of complaint in the foreclosure suit recites that “on the 21st day of January, A. D. 1878, the said Tillman Ingram and E. E.

Adamson, by their certain instrument under seal of that day and date, did duly and legally assign and transfer to your oratrix, the said Augusta S. Matheson, the said mortgage deed aforesaid, together with the consideration for which said mortgage was given,” No mention of the transfer of the note to the assignee is'made. Mr. Ingram, in his testimony in this case, says the note was “lost or mislaid.” The record of this mortgage is exhibited, and upon the margin of the record it appears something had been written and erased.

Several witnesses testify that the words erased are partially distinguishable, and after examination with a magnifying glass they testify that the words erased were “ settled in full,” or “ satisfied in full February 2, 185—, S. P. Beville, C—S. P. Beville, at that time, was the acting clerk of the (jircuit Court, having charge of the records. This mortgage and erasure are on pages 104, 105 and 106 of Book A. of Mortgages. When the erasure was done, or by whom, does not appear. Beville, the clerk, remembers nothing of the erasure.

It appears in evidence that on the 21st day of October, 1858, the same mortgagor, Alexander Matheson, executed to Tillman Ingram and E. E. Adamson another mortgage, recorded October 23, 1858, in book of mortgages on pages 56 and 57, upon six hundred and forty acres of land, to secure the payment of the same note described in the mortgage of June 12th, 1857. It appears further that on the second day of February, 1859, there was filed and recorded in “Sale Book A,” page 59, the following paper: “We, Tillman Ingram and E. E.

Adamson, acknowledge payment and satisfaction of the mortgage given by Alexander Matheson to them and recorded in the clerk’s office in Alachua county in book of mortgages on pages 56 and 57, October 23,1858, and we, by these presents, discharge him and his heirs therefrom forever. In testimony whereof we have hereunto put our hands and seals this the second day of February, A. D. eighteen hundred and fifty-nine. “ Tillman In&ram, [seal.] “ E. E. Adamson, [seal.] “ Sealed and delivered in presence of W. II. Babcock. “T. W. McCaa.” “ Recorded in Book of Mortgages on page 59, this 2d of February, 1859. S. P.

Beville, D. C.” The original of this paper was glued on the margin of the record at page 57. The signatures of the parties and witnesses was satisfactorily proved. The witness, McOaa, is dead. The witness, W. II. Babcock, testified to the signing lty him as a witness to the signatures. He knew Ingram well, had been in business with him and knew his handwriting. From such knowledge he believes the signature of Tillman Ingram to be in his handwriting. Would not have witnessed the paper without being requested by one of the parties signing it and being satisfied as to the genuinenesss of the signatures.

Ingram testifies that tile mortgage of June 12, 1857, was not paid or satisfied in any manner. That the note was taken by him to Texas and “ has been lost or mislaid, as 1 did not consider it of any value. The mortgage was given for value, for real indebtedness to me of about $10,000. Transferred the mortgage to Mrs. Matheson about 21st January, 1873. Did not make entry of satisfaction or authorize it to be done.

Rever knew that Thompson -had a deed of the lot.” “ I never signed any instrument of any kind in presence of Babcock or any one else releasing the mortgage, nor did I deliver any such instrument to the clerk of the court, nor did I authorize the clerk of the court, S. P. Beville, to cancel the mortgage for me.” Mr. Ingram’s testimony relates to the satisfaction of the mortgage of June 12,1857.

He is certainly mistaken as to the execution of the paper acknowledging payment and satisfaction of the mortgage of October 23d, 1858, which had been held by him and Adamson to secure payment of the same note mentioned in the mortgage of June 12,' 1857. His attention was not drawn to the mortgage of 1858 when he was giving his testimony, nor was the acknowledgment of payment and satisfaction of that mortgage with his name attached exhibited to him. The language of that acknowledgment is that the mortgage of October 23, 1858, which describes the same note mentioned in the mortgage of 1857, was paid and satisfied.

The payment and satisfaction of the mortgage legitimately means that the debt secured by it is paid and satisfied. The result was that the mortgage of June, 1857, was satisfied, the debt being paid. Mr. Ingram perhaps thought the mortgage of 1857 was a subsisting incumbrance of some sort upon the property because it was not cancelled of record, though he did not consider the note of any value.

A peculiarity of the proceedings is that in the transfer or assignment of the mortgage by Ingram no mention is made of the note, and in the foreclosure suit neither note or mortgage was produced, nor their absence accounted for, nor does it. appear in what manner it was ascertained how much was due thereon as a basis of the decree. Mr. Ingram says the mortgage was given by Alexander Matheson to himself and Adamson to secure them for money dge, and also as security for Matheson to Kirkpatrick & Co. and others. Ro account seems to have been taken to ascertain the amount actually due.

In the respects that the foreclosure was had without making this complainant a party, his deed being of record,' that the note and mortgage were not produced or accounted for, that no evidence was taken as to the amount due, that the assignment was not produced to show what was assigned, that defendants in this suit declined to produce it, that the note and mortgage were of the age of sixteen years when the assignment is said to have been made, during which time no attempt seems to have been made to enforce the' mortgage or to collect the amount due on the note, that eighteen years elapsed before the commencement of the foreclosure suit,in which suit nobody interested in the propei-ty was made defendant, that neither of the complainants had ever had possession of the note and nobody knows where it is, it is impossible to conceive that the complainant’s property ought to be affected by such proceedings.

See Buckmaster vs. Kelly, 15 Fla., 180. The foreclosure and sale, and the subsequent conveyance, are clouds upon his title which give him a standing in equity to maintain this suit. ITis deed was of record. The evidence of the payment of the mortgage debt was of record, and even the ■original satisfaction piece was pasted upon the record book. A memorandum by the clerk in the margin of the record ■of this mortgage, dated on the very day of the date of the satisfaction piece, to the effect that it was satisfied, had been not entirely erased.

Whether this memorandum of the clerk was evidence of the satisfaction of the mortgage or not, the fact remains that on that day the mortgagees acknowledged payment of the debt mentioned in it and the memorandum expressed the fact. There is a large mass of testimony in the record which is totally irrelevant to the merits of the case. Who paid the taxes? (and both parties sought to prove they paid taxes) who was the reputed owner ?

The sale of the lots upon an execution against a party who had no interest in it, a couveyance by the mortgagees without a foreclosure, all these- and other matters foreign to the case are of no legitimate consequence, but only encumber the record. The decree is fully sustained by the evidence and is affirmed.